[ DIVORCE IN VARIOUS PERSONAL LAWS ]

A Research Project Report

Submitted to

School of Law

Auro University

As a second Course Work for continuous evaluation in the subject of

FAMILY LAW [Law103]

Semester III
[2013- 2018]

UNDER THE GUIDANCE OF

Prof. Ankita Kumar Gupta[ LAW 107]

School of Law

Auro University

RESEARCHERS
Anuja Shah
Shahbaz Malbari

UNDERTAKING
We the undersigned hereby give an undertaking that this project report titled Divorce Under
Various Personal Laws is based on the data collected and analyzed by us. This Report is a
Course Work conducted as part of continuous evaluation for the course of Family law [Law 107].

Date: 15th October 2014

Anuja Shah
Shahbaz Malbari

ACKNOWLEDGEMENT
Apart from the group Members, the success of our project depends largely on the encouragement
and guidelines of many others. I take this opportunity to express my gratitude to the people who
have been instrumental in the successful completion of the project. We would like to show our
greatest appreciation to Prof. Ankita Kumar Gupta
Thank you so much tremendous support and help you provided us for carrying out a research
project.The blessing, help and guidance given by you time to time shall carry us a long way in
the journey of life which we are about to embark. Without their encouragement and guidance this
project would have not been materialized .
The guidance and support received from all the members who contributed to this project, was
vital for the success of the project. We are grateful for the constant support and help.

CONTENT

Page No
1. Introduction5
1.1
General introduction to the topic..5
1.2
Objectives of the Study..6
1.3
Hypothesis of the Study...............7
1.4
Research Methodology..8
2.
3.
4.
5.

Main Body related to the study.9

Testing of Hypothesis19
Conclusion/Suggestions/Recommendations..20
Bibliography..............21

INTRODUCTION
The law relating to family disputes and obligations has grown dramatically since the 1970s, as le
gislators and judges have reexamined and redefined legal relationships surrounding Divorce,
child
custody
and
child
support.
Family law has become entwined with national
debates over the structure of the family, gender bias, and morality. Despite many changes made
by state and federal legislators, family lawremains a contentious area of U.S. law, generating
strong emotions from those who have had to enter the legal process.
Before understanding the laws sections and articles regarding Divorce in various personal laws
Let us understand the legal definition of divorce. What is divorce? The legal separation of man
and wife, effected, for cause, by the judgment of a court, and either totally dissolving the
marriage relation, or suspending its effects so far as concerns the cohabitation of the parties.
There are different laws of divorce for different religion.
Hindus(which includes Sikh, Jain, Budh) are governed by Hindu Marriage
Act,1955.
Christians are governed by Indian Divorce Act-1869 & The Indian Christian
Marriage Act,1872.
Muslims are governed by Personnel laws of Divorce and also the Dissolution of
Marriage Act,1939 & The Muslim Women(Protection of Rights on Divorce)
Act,1986.
Parsis are governed by The Parsi Marriage & Divorce Act-1936.
Spouses belonging to different communities and castes can seek divorce under the
Special Marriage Act, 1956
There is also the Foreign Marriage Act 1969, governing divorce laws in marriages
where either partner belongs to another nationality.

OBJECTIVE
Divorce (or the dissolution of marriage) is the termination of a marital union, the canceling
and/or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds
of matrimony between a married couple under the rule of law of the particular country and/or
state. At one time, India used to have one of the lowest divorce rates in the world. Being a
society largely based on a traditional value system, couples were both legally and socially
dissuaded from seeking a divorce. Here we have focused mainly on divorce by mutual consent
under various personal laws. Mutual consent legally means meeting of two minds before binding
any kind of contract.
The study is carried out with following objective
To understand divorce by mutual consent under various personal laws

RESEARCH METHODOLOGY
A study regarding Divorce under Various personal Laws is carried out to understand divorce by
mutual consent under various personal laws. Doctrinal research method is being proposed for
framing this report .Legally Doctrinal Research is concerned with legal prepositions and
doctrines
The doctrinal research methodology developed intuitively within the common
law a research method at the core of practice.
METHOD OF DATA COLLECTION

In case of doctrinal research field work is not needed library is sufficient ,so we went
through Various Family law books, magazines bare-acts available in Law library .
Use of Modern Technology/ Computer Assisted Research
All sources the data collected are legal and appelate court decisions .
Most focus is laid on sections case laws and documents rather than society and people
living in it.

HYPOTHESIS
Whether there is any kind of provision regarding maintenance in divorce by mutual
consent?
Whether the time period for reconciliation is provided under Hindu Marriage Act
Whether the divorce is granted to the parties without living separately?
Whether there are certain rights with wife to ask for divorce under Muslim Law?
Whether mutual consent obtained by force, fraud or undue influence can lead to
divorce?

DIVORCE UNDER VARIOUS PERSONAL LAWS

At one time, India used to have one of the lowest divorce rates in the world. Being a society
largely based on a traditional value system, couples were both legally and socially dissuaded
from seeking a divorce. However, socio-economic changes complemented by legal reforms in
the last half a century, have enabled partners, especially women, to opt out of unequal and
abusive marriages1. However, the divorce procedure in India continues to be one of the most
protracted in the world, especially in cases where either party contests the divorce.
A cursory reading of the entire gamut of Indian Laws regarding Divorce makes it clear broadly
that the Divorce can be obtained by two ways2:
Divorce by Mutual Consent

Contested Divorce

DIVORCE BY MUTUAL CONSENT3

Seeking a divorce in India is a long-drawn out legal affair, where the period of prosecution takes
a minimum of six months. However, the time and money required to obtain a divorce can be
considerably shortened if the couple seeks divorce by mutual consent. However, for filing for a
divorce on this ground, it is necessary for the husband and wife to have lived separately for at
least a year. Mutual Consent Divorce is a simple way of coming out of the marriage and
dissolves it legally. Important requirement is the mutual consent of the husband & wife. There
are two aspects on which Husband & Wife have to reach to consensus. One is the alimony or
maintenance issues. As per Law there is no minimum or maximum limit of maintenance. It could
be any figure or no figure. Next important consideration is the Child Custody. This can also be
worked out effectively between the parties. Child Custody in Mutual Consent Divorce can be
shared or joint or exclusive depending upon the understanding of the spouses. After hearings
from the husband and wife, if the judge is satisfied that all the necessary grounds and
requirements for the divorce have been met, the couple is granted a mutual divorce decre.Other
than alimony and child custody , return of dowry items or "streedhan" and litigation expenses are
also important issues.

1 The Guide to Getting a Divorce in India by Mutual Consent by kalyani retrived online on 14 October 2014
from[http://www.futurescopes.com/getting-divorce/821/guide-getting-divorce-india-mutual-consent]

2 HOW TO GET A DIVORCE IN INDIA retrived online on 14 October 2014 from

[http://www.divorcelawyers.co.in/how-to-get-a-divorce-in-india/]
3 HOW TO GET A DIVORCE IN INDIA retrived online on 14 October 2014 from
[http://www.divorcelawyers.co.in/how-to-get-a-divorce-in-india/]
9

Duration of Divorce in Mutual Consent varies from one month to six months or more from States
to States and as per the High Court directions.

UNDER HINDU LAW

In this Law, estranged spouses can mutually agree to a settlement and file for a "no-fault divorce"
under Section 13-B of the Hindu Marriage Act 1955. All marriages which have been
solemnized before or after the Marriage Laws (Amendment) Act 1976, are entitled to make use
of the provision of divorce by mutual consent.
SECTION 13 -B OF THE HMA ACT 1955 4 PROVIDES FOR DIVORCE BY MUTUAL
CONSENT.
(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of
divorce may be presented to the district court by both the parties to a marriage together, whether
such marriage was solemnised before or after the commencement of the Marriage Laws
(Amendment) Act, 1976 (68 of 1976)*, on the ground that they have been living separately for a
period of one year or more, that they have not been able to live together and that they have
mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the
presentation of the petition referred to in sub-section (1) and not later than eighteen months after
the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied,
after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been
solemnised and that the averments in the petition are true, pass a decree of divorce declaring the
marriage to be dissolved with effect from the date of the decree.

THE CONDITIONS REQUIRED UNDER HINDU MARRIAGE ACT ARE AS UNDER 5

Husband and wife should be living separately for a period of one year or even more.
That they are unable to live together,
And that both husband and wife have mutually agreed that the marriage has totally
collapsed, Hence marriage should be dissolved.6
There is a fourth ingredient for a decree of divorce by mutual consent, that is the consent
of the parties has been obtained not by force, fraud or undue influence

4 Section 13 -B The HMA Act 1955

5 Smt. Sureshta Devi v. Om Prakash AIR 1992 SC 1909
6 Girija v,Vijaya AIR 1995 Ker 159
10

LIVING SEPERATE :- The expression living separate means that parties are not living as

husband and wife, irrespective of the fact that they are living in the same house or in different
houses.7

NOT ABLE TO LIVE TOGETHER: The expression not able to live together means that the

marriage had broken down irretrievably. On the motion being moved by the parties that the
marriage be dissolved , shall on being satisfied after hearing the parties and after making such
inquiry as it thinks fit that the marriage has been solemnized and that the averments in the
petition are true, pass a decree . The court in every case must be satisfied by consent of neither
party has not been obtained by force , fraud or undue influence.8

RELATED CASE LAW

In Smt. Sureshta Devi v. Om Prakash9, Honourable Supreme Court held as

under:
Under Sub-section (2) the parties are required to make a joint motion not
earlier than six months after the date of presentation of the petition and not
later than 18 months after the said date. This motion enables the Court to
proceed with the case in order to satisfy itself about the genuineness of the
averments in the petition and also to find out whether the consent was not
obtained by force, fraud or undue influence. The Court may make such
inquiry as it thinks fit including the hearing or examination of the parties for
the purpose of satisfying itself whether the averments in the petition are true.
If the Court is satisfied that the consent of parties was not obtained by force,
fraud or undue influence and they have mutually agreed that the marriage
should be dissolved, it must pass a decree of divorce."
HOW DOES IT WORK10

In all there are two court appearances in mutual divorce

7 Smt. Sureshta Devi v. Om Prakash AIR 1992 SC 1909

8 Section 23(1)(aa),HMA Act 1955

9 Smt. Sureshta Devi v. Om Prakash AIR 1992 SC 1909

10 Mutual consent divorce, retrived online on 14 October 2014 from

[Http://www.legalserviceindia.com/helpline/mutual_consent_divorce.htm]
11

 First A joint petition signed by both parties is filed in court

Secondly In the first motion statement of both parties are recorded and then signed on
paper before the Hon'ble Court.
Thirdly The 6 month period is given for reconciliation, (the hon'ble court gives a chance
to the couple to change their mind)
Fourthly 6 months after the first motion or at the end of the reconcile period if both
parties still don't agree to come together. Then the parties may appear for the second
motion for the final hearing.
Finally Divorce decree will be granted as the Hon'ble Court may deem fit.

FORMALITIES TO BE COMPLIED WITH11

Under this section a decree for dissolution of marriage solemnized under this Act can be passed
by a District Court on compliance with the following formalities:
A petition is to be presented jointly by the parties to the marriage.
The parties have been living separately for a period not less than one year The parties
have failed for any reason whatsoever to live together. In other' words, no reconciliation
or adjustment is possible between them
The parties have freely consented to the agreement of dissolution of marriage.
The court must be satisfied as to the averments in the petition after making inquiry and
after hearing the parties which are initiated by a joint motion of the expiry of six months
from presentation of the petition. The expression "after hearing the parties" appearing in
sub-section (2) of section 28 of the Act does not require the presence of the parties
before the court.
Every petition should contain certain details as to the facts on which the relief claim is based ,
that the petition is not presented in collusion between two parties , The statements contained in
the petition shall be verified by the petitioner or some other competent person.

GROUND OF DIVORCE BY MUTUAL CONSENT12

The ground of divorce by mutual consent is to be found in section 28 of the Special Marriage
Act 1954, and in section 13B of the HMA. The Hon'ble court cannot read that ground under
section 10 of the Divorce Act 1869, by adopting a policy of "social engineering".In petition for
divorce by mutual consent ,no other ground for divorce can be taken.
11 Mutual consent divorce, retrived online on 14 October 2014 from
[Http://www.legalserviceindia.com/helpline/mutual_consent_divorce.htm]
12 Mutual consent divorce, retrived online on 14 October 2014 from
[Http://www.legalserviceindia.com/helpline/mutual_consent_divorce.htm]
12

 CONVERSION OF FAULT GROUND PETITION TO PETITION BY MUTUAL

CONSENT

The policy of law having undergone a change after the Marriage Laws (Amendment) act, it is
now possible to dissolve a marriage by agreement between the parties although none of the
grounds on which the marriages may be dissolved by the court, be found to exist
.
RELATED CASE LAW

In the case Indrawal v Radhey Raman13 husbands petition on the grounds of wifes adultery
and desertion was decreed and the wife appealed . At the appellate stage the court asked the wife
what she wanted and she said that she did not want to live with the husband and she would agree
for a compromise decree of divorce , if the husband withdrew the charges . The husband
agreed ,provided the wife also withdrew the counter charge of adultery . Both the parties agreed
accordingly.
Simmilarly in Santosh v Virendra and Ravi vs Sharda14, a petition for divorce on the ground
of cruelty and desertion was allowed to be converted into the petition of divorce by mutual
consent.
UNILATERAL WITHDRAWAL OF CONSENT BY ONE PARTY.

Earlier some High courts expressed the view that once consent is given , one of the parties to the
petition cannot withdraw the consent. But later the Bombay , Punjab and Haryana and kerala
High courts have expressed the view that a spouse is free to withdrew his or her consent,
unilaterally at any time15. It should not be ignored that in such cases marriage has in fact broken
down irretrievably and no use will be served in keeping it alive.
RELATED CASE LAW
In Ashoka Hurra v. Rupa16 it was held by the Supreme Court that divorce should be granted
even though the wife had the wife had unilaterally withdrawn the consent as the marriage was
found to be irretrievably broken down.
The period of 18 months is the upper Limit for the withdrawal of the petition , but the court has
power to grant divorce even after the expiry of six months ,if other conditions are fulfilled .
Another trend that is discernible in our High court , where waiting period of six months is
dispensed with if there is history of long protracted litigation and marriage is found to be
irretrievably broken down.
13 AIR 1981 All 151.
14 AIR 1980 RAJ 128.
15 Harcharan kaur v. nachatarr singh AIR 1988 P&H 27
16 (1997) 4 SCC 226.
13

 DIVORCE ON THE BASIS OF MUTUAL COMPROMISE

In Raymond V Union 17of India was a petition of divorce by mutual consent under the divorce
Act.the supreme court said that such a petition could not be granted, as under the divorce act,
there is no provision for divorce by mutual consent.. But after the amendment of the said act this
provision is now available by the virtue of section 10-A . In Joginder v. pushpa18 , a petition for
divorce on the basis of compromise was allowed. But Calcutta High Court in Apurba v
Manashi,19 has dissented from the view. In our submission , it is wrong view as a consent
petition for divorce is after all a petition by compromise. In a statue which recognizes divorce by
mutual consent, it is implicit that petition is a compromise petition.

UNDER PARSI LAW

Zoroastrianism states that marriage is a spiritual discipline and not a mere civil contract .
The parsi laws acknowledges the conversion of a non-parsi into zoroastranian. Grounds
of divorce in the Parsi marriage Act where further liberalized and divorce by the mutual
consent was introduced in the year 1988( Amendment Act).
Section 32-B of The Parsi Marriage and Divorce Act, 1936, states:
(1) Subject to the provisions of this Act, a suit for divorce may be filed by both the
parties to a marriage together, whether such marriage was solemnized before
or after the commencement of the Parsi Marriage and Divorce (Amendment)
Act, 1988, on the ground that they have been living separately for a period of
one year or more, that they have not been able to live together and that they
have mutually agreed that the marriage should be dissolved: Provided that no
suit under this sub-section shall be filed unless at the date of the filing of the
suit one year has lapsed since the date of the marriage.
(2) The Court shall, on being satisfied, after hearing the parties and after making
such inquiry as it thinks fit, that a marriage has been solemnized under this
Act and the averments in the plaint are true and that the consent of either
party to the suit was not obtained by force or fraud, pass a decree declaring
the marriage to be dissolved with effect from the date of the decree.

CASE LAW

In Minoo Rustomji Shroff And Ors. vs Union Of India its was held that the
interpretation placed by the Supreme Court on Section 13B of the Hindu

17 AIR 1982 SC 1261.

18 AIR 1969 P&H (FB)
19 AIR 1989 Cal 184.
14

Marriage Act, 1955 applies equally, to Section 32B of The Parsi Marriage And
Divorce Act.

UNDER MUSLIM LAW20

KHULA:
They are two forms of divorce by mutual consent but in either of them, the wife has to
part with her dower or a part of some other property. A verse in the Holy Quran runs as:
And it not lawful for you that ye take from women out of that which ye have given
them: except (in the case) when both fear that they may not be able to keep within the
limits (imposed by Allah), in that case it is no sin for either of them if the woman ransom
herself. The word khula, in its original sense means to draw or dig up or to take
off such as taking off ones clothes or garments. It is said that the spouses are like
clothes to each other and when they take khula each takes off his or her clothes, i.e., they
get rid of each other. In law it is said is said to signify an agreement between the spouses
for dissolving a connubial union in lieu of compensation paid by the wife to her husband
out of her property. Although consideration for Khula is essential, the actual release of the
dower or delivery of property constituting the consideration is not a condition precedent
for the validity of the khula. Once the husband gives his consent, it results in an
irrevocable divorce. The husband has no power of cancelling the khul on the ground
that the consideration has not been paid. The consideration can be anything, usually it is
mahr, the whole or part of it. But it may be any property though not illusory.
MUBARAT :
In mubarat, the outstanding feature is that both the parties desire divorce. Thus, the
proposal may emanate from either side. In mubarat both, the husband and the wife, are
happy to get rid of each other . Among the Sunnis when the parties to marriage enter into
a mubarat all mutual rights and obligations come to an end . The Shia law is stringent
though. It requires that both the parties must bona fide find the marital relationship to be
irksome and cumbersome. Among the Sunnis no specific form is laid down, but the Shias
insist on a proper form. The Shias insist that the word mubarat should be followed by the
word talaaq, otherwise no divorce would result. They also insist that the pronouncement
must be in Arabic unless the parties are incapable of pronouncing the Arabic words.
Intention to dissolve the marriage should be clearly expressed. Among both, Shias and
Sunnis, mubarat is irrevocable. Other requirements are the same as in khula and the wife
must undergo the period of iddat and in both the divorce is essentially an act of the
parties, and no intervention by the court is required.
DIVORCE BY WIFE:

20 The Concept of Divorce under Muslim Law retrived online on 14 October 2014 from
[ http://www.legalserviceindia.com/article/l393-Divorce-under-Muslim-Law.html]
15

The divorce by wife can be categorized under three categories:

(i) Talaaq-i-tafweez
(ii) Lian
(iii) By Dissolution of Muslim Marriages Act 1939.
TALAAQ-I-TAFWEEZ OR DELEGATED DIVORCE

It is recognized among both, the Shias and the Sunnis. The Muslim husband is free to delegate
his power of pronouncing divorce to his wife or any other person. He may delegate the power
absolutely or conditionally, temporarily or permanently . A permanent delegation of power is
revocable but a temporary delegation of power is not. This delegation must be made distinctly in
favour of the person to whom the power is delegated, and the purpose of delegation must be
clearly stated. The power of talaaq may be delegated to his wife and as Faizee observes, this
form of delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to
obtain freedom without the intervention of any court and is now beginning to be fairly common
in India. This form of delegated divorce is usually stipulated in prenuptial agreements. In Md.
Khan v. Shahmai 21, under a prenuptial agreement, a husband, who was a Khana Damad,
undertook to pay certain amount of marriage expenses incurred by the father-in-law in the event
of his leaving the house and conferred a power to pronounce divorce on his wife. The husband
left his father-in-laws house without paying the amount. The wife exercised the right and
divorced herself. It was held that it was a valid divorce in the exercise of the power delegated to
her. Delegation of power may be made even in the post marriage agreements. Thus where under
an agreement it is stipulated that in the event of the husband failing to pay her maintenance or
taking a second wife, the will have a right of pronouncing divorce on herself, such an agreement
is valid, and such conditions are reasonable and not against public policy . It should be noted that
even in the event of contingency, whether or not the power is to be exercised, depend upon the
wife she may choose to exercise it or she may not. The happening of the event of contingency
does not result in automatic divorce.
LIAN

If the husband levels false charges of unchastity or adultery against his wife then this amounts to
character assassination and the wife has got the right to ask for divorce on these grounds. Such a
mode of divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery
made by the husband which, if false, would entitle the wife to get the wife to get the decree of
divorce on the ground of Lian. Where a wife hurts the feelings of her husband with her behaviour
and the husband hits back an allegation of infidelity against her, then what the husband says in
response to the bad behaviour of the wife, cannot be used by the wife as a false charge of
adultery and no divorce is to be granted under Lian. This was held in the case of Nurjahan v.
Kazim Ali by the Calcutta High Court.

21 (1908) L.R. 33 I.A. 81 S.C. 8 Bom. L.R. 397

16

RELATED CASE LAWS22

1) In Syed Ziauddin v. Parvez Sultana , Parvez Sultana was a science graduate and she
wanted to take admission in a college for medical studies. She needed money for her
studies. Syed Ziaudddin promised to give her money provided she married him. She did.
Later she filed for divorce for non-fulfillment of promise on the part of the husband. The
court granted her divorce on the ground of cruelty. Thus we see the courts attitude of
attributing a wider meaning to the expression cruelty.
2) In Zubaida Begum v. Sardar Shah , a case from Lahore High Court, the husband sold
the ornaments of the wife with her consent. It was submitted that the husbands conduct
does not amount to cruelty.
3) In Aboobacker v. Mamu koya , the husband used to compel his wife to put on a sari and
see pictures in cinema. The wife refused to do so because according to her beliefs this
was against the Islamic way of life. She sought divorce on the ground of mental cruelty.
The Kerela High Court held that the conduct of the husband cannot be regarded as cruelty
because mere departure from the standards of suffocating orthodoxy does not constitute
un-Islamic behaviour.
4) In Itwari v. Asghari , the Allahabad High Court observed that Indian Law does not
recognize various types of cruelty such as Muslim cruelty, Hindu cruelty and so on,
and that the test of cruelty is based on universal and humanitarian standards; that is to
say, conduct of the husband which would cause such bodily or mental pain as to endanger
the wifes safety or health.

THE SPECIAL MARRIAGE ACT AN INTRODUCTION

The Special Marriage Act, 1954 (the Act)23, was enacted to provide a special form of marriage, to
persons in India, and Indian nationals abroad, irrespective of the faith which either party to the
marriage may profess. In addition to the provisions for solemnization of special marriages, the
Act also provides for registration of marriages celebrated in other forms.
The Act came into force on January 1, 1955, and extends to the whole of India except the State
of Jammu and Kashmir. It also applies to citizens of India domiciled in the territories to which
the Act extends, who are in the State of Jammu and Kashmir.
DIVORCE BY MUTUAL CONSENT24

22 The Concept of Divorce under Muslim Law retrived online on 14 October 2014 from
[ http://www.legalserviceindia.com/article/l393-Divorce-under-Muslim-Law.html]

23 Special Marriage Act, 1954

17

Under sec. 28 of the Act, which primarily deals with the provisions relating to obtaining a
divorce by mutual consent in respect of a marriage solemnized and/or registered under the Act, a
petition for divorce by mutual consent may be presented to the District Court. A few key points
to be considered while seeking a divorce by mutual consent are as follows25:
1. A petition for divorce must be presented to the District Court by both parties together.
2. The petition must be on the grounds,
that they have been living separately for a period of one year or more,
that they have not been able to live together, and
that they have mutually agreed that the marriage should be dissolved.
3. The petition may be presented only after one year from the date of entering the certificate of
marriage in the Marriage Certificate Book. However, relaxation may be provided in cases where
exceptional hardship is suffered by the petitioner or in cases of exceptional depravity on the part
of the respondent.
4. The petition seeking divorce by mutual consent could be presented to a District Court, within
whose jurisdiction, either,
the marriage was solemnized,

the respondent resides, or in case the wife is the petitioner, where she is residing,

the parties to the marriage last resided together, or

the petitioner resides, in cases where the respondent is residing outside the territories to
which the Act extends.

5. Between 6 months after, and within 18 months of, the date of presentation of the petition
seeking divorce by mutual consent, both parties must make a motion together seeking grant of a
decree of divorce.
6. Before passing a decree of divorce, the District Court considers the following, among other
aspects:
that the petition has not been withdrawn yet,

that a marriage has been solemnized under the Act,

that the averments in the petition are true,

that consent for divorce has not been obtained by force, fraud or undue influence

that there has not been any unnecessary or improper delay in instituting the proceedings.

Thus, the provisions and the procedure for obtaining divorce by mutual consent under the
Special Marriage Act are fairly simple and straight forward.
24 DIVORCE BY MUTUAL CONSENT UNDER THE SPECIAL MARRIAGE ACT, 1954
retrived online on 14 October 2014 from [http://sunderbanlawoffices.com/2011/07/30/divorceby-mutual-consent-under-the-special-marriage-act-1954/]
25Section 28, Special Marriage Act, 1954.
18

Parties desirous of obtaining a divorce by mutual consent, must however keep in mind that the
Act also contains provisions dealing with grant of alimony and maintenance, both permanent and
during the pendency of the proceedings. In the cases of divorce by mutual consent, the parties
may agree upon the terms relating to payment of alimony or maintenance and the same may be
incorporated in the pleadings before the Court. However care has to be taken that suitable
provisions are incorporated in the pleadings to avoid future misunderstandings or litigation. It is
therefore advisable that, while discussing the various issues connected with seeking a divorce by
mutual consent with their advocates, the parties must specifically discuss their arrangement and
agreement on alimony and maintenance, and take suitable steps to ensure that their interest is
safeguarded.

TESTING OF HYPOTHESIS
Yes , there is a provision for maintenance but here is no minimum or maximum limit of
maintenance. It could be any figure or no figure.
Yes, a period of six months is granted for reconciliation in case if the parties want to
change their decision.
No divorce can be granted only if the parties have lived separately for a year or more
Yes , the wife has right to ask for divorce under Talaaq-i-tafweez , Lian , By Dissolution
of Muslim Marriages Act 1939
No, mutual consent obtained by force, fraud or undue influence is not a divorce.

19

 CONCLUSION AND RECOMMENDATIONS

Large number of divorce cases are pending in court due to various reasons. Every year, an
average 7,500 cases of divorce are filed in Mumbai, 9,000 in Delhi and 3,000 in Bangalore.
Many changes have been brought as to proposal of several amendments to facilitate early
settlement of cases.
The final cause of recently increasing divorce is lack of communication. Owing to
financial status in each family, many people are fairly busy. For this reason, they have inadequate
time to talk to the problems with their partners, which produces the likelihood of divorce. Some
couples are often quiet when they have problems each other, as a consequence little problems can
be expanded to probably become huge problems, resulting in divorce. It is quite clear that the
more communications are used, the more divorce rates are reduced. conclusion, a family is one
of the important parts of society, thus many people had better aware of the significance of
relationship in family.
At the moment, divorce have become the substantial problem because of
changing womens roles, stress in modern living and lack of communication. Nevertheless, there
are also the two different ways in effects, which are negative and positive effects. Some couples,
which have no children, divorce by consent, therefore divorce should be good solution for
couples to deal with this problem. On the other hand, some couples having children in their
family should think deliberatively before they end their marriage in divorce; otherwise innocent
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children probably become victims for this situation. Although people trend to think carefully
before they get marriage, the rates of divorce continuously rise nowadays.

BIBLIOGRAPHY
Books Referred
1. Family law by Dr. Paras Diwan
2. Family law in India by H.K Saharay
3. Redefining Family Law in India by Parashar Dhanda
STATUES
1.
2.
3.
4.
5.

Indian divorce act 1869

Hindu Marriage act 1955
Parsi marriage and divorce act 1936
Special Marriage Act 1954
Muslim marriage act 1955

WEBSITES REFERRED
www.Manupatrafast.com
www.vakilno1.com
www.indiankanoon.com
www.sunderbanlawoffices.com
www.legalserviceindia.com
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